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Challenging the Right to Take: Will Inefficient Planning Stop the Taking?

We’ve been discussing the Right to Take in the Eminent Domain Process in several of our previous blog posts.  These blogs primarily discuss the limitations of eminent domain, and provide our readers with a brief summary of when a property owner can challenge an eminent domain taking.  To continue the discussion on the right to take, I’d like to provide insight on a scenario frequently presented to us by property owners who would like to prevent the government from acquiring their property.

Oftentimes, property owners will describe a planned taking of their property by the state Department of Transportation (DOT) along the edge of their property for a new road, and the taking will encroach upon their house and two buildings.  Across the street from them is vacant land with no improvements.  The question remains, why are they taking the improved land and not taking the land from the property owner across the street?  It will be less expensive to acquire and will not negatively impact the property.  Is this a basis for stopping the taking?

Let’s take a look at another example.  The DOT is planning on building a bypass around a city, and the path they’ve chosen goes through an area that contains expensive, developed property.  The affected owners in the area disagree with the alignment; they feel the road should be constructed elsewhere .  Is this a basis for stopping the taking?

Unfortunately, we have to tell people that the answer to these questions is no, these scenarios do not provide a legal remedy for challenging a right to take.  This issue has been raised many times before many courts, and the courts have uniformly said that if the taking meets the public use and necessity test for instance of a road, then it is not the province of the court to determine whether the placement of the road is the wisest decision, or whether it’s the smartest decision, or whether it’s the most cost affective decision.  That decision is strictly for the legislative authority that is authorized to do the taking in the first place.  If the public use and necessity test is met, the taking will be authorized and the other issues of efficiency, cost effectiveness, ect are left for the political arena.

When these situations arise, unfortunately, your only remedy as a property owner is to go to the ballot box and vote out the people who authorized the project and elect new people in.  This ties in with our last blog post where we recommended to property owners that they exercise their right of freedom of speech and their right to vote.   Although this is not a legal remedy for stopping a taking, it might be the only option for some property owners who wish to stop a taking.


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